i£x  ICtbrt0 


SEYMOUR  DURST 


When  you  leave,  please  leave  this  book 

Because  it  has  been  said 
"Sver'thing  comes  t'  him  who  waits 

Except  a  loaned  book." 


Avery  Architectural  and  Fine  Arts  Library 
Giftoi  Seymour  B.  Durst  Old  York  Libr  vry 


THE 

TRIAL  OF  AAEON  BURR 


BY 


J^MES  ALSTON  CABELL 

of  tnE  Virginia  Bar 


A  paper  read  before  the  New  York  State   Bar  Association,  at  its 
Annual  Meeting  at  Albany,  January  17,  1900,  and  reprinted 
from  the  Proceedings  of  the  Association 


ALBANY' 

THE  ARCH'S  COMPANY,  PRINTERS 
1900 


With  the  Compliments  of 

JAMES  ALSTON  CABELL, 

Richmond,  Va. 


Digitized  by  the  Internet  Archive 
in  2014 


http://archive.org/details/trialofaaronburrOOcabe 


THE 

TRIAL  OF  AARON  BURR 


BY 

JAMES  ALSTON  CABELL 


of  thk  Virginia  B  \k 


paper  read  before  the  New  York  State   Bar  Association,  at 
Annual  Meeting  at  Albany,  January  17,  1900,  and  reprinted 
from  the  Proceedings  of  the  Association 


ALBANY 

THK  ARGUS  COMPANY,  PRINTERS 
I900 


THE  TRIAL  OF  AARON  BURR. 


 >  

In  this  period  of  territorial  expansion,  when  the  fever  of 
annexation  is  raping-  over  the  land,  and  some  of  the  best 
intellects  of  the  country  are  devoting-  themselves  to  the 
discussion  of  "  Imperialism,"  it  is  interesting  to  remember 
that  the  first  great  American  Expansionist  was  a  citizen 
of  Xew  York  —  Aaron  Burr. 

During  the  administration  of  the  elder  Adams,  the  rest- 
lessness of  the  people  on  the  Spanish  border  had  become 
so  great,  and  the  petty  vexations,  indignities  and  insults 
of  Spain  had  become  so  unbearable,  that  a  general  belief 
had  gained  ground  that  war  was  inevitable.  The  prov- 
inces of  South  America,  too,  desired  to  resist  the  authority 
of  Spain  and  establish  an  independent  republic.  With  this 
end  in  view,  Miranda  and  some  of  his  fellow  patriots,  who 
hoped  to  procure  the  aid  of  both  this  country  and  Great 
Britain,  had  visited  the  United  States  and  had  laid  before 
the  most  distinguished  men  of  the  country  their  plans 
for  an  American  invasion.  Such  men  as  Knox,  and  Ham- 
ilton, and  Jay,  favored  the  project,  and  even  Mr.  Jeffer- 
son is  alleged  to  have  assented  to  it.  The  enterprise  would, 
doubtless,  have  proceeded,  had  not  Mr.  Adams,  who  was 
at  that  time  president,  declined  entering  into  the  arrange- 
ment. Yon  can  well  understand  with  what  fascination 
such  an  undertaking  would  appeal  to  an  ambitions  and 
intrepid  mind  like  Burr's.  "  From  this  period,"  says  his 
biographer,  "  until  1805,  Burr's  mind  seemed  to  be  con- 


4 

stantly  engaged  in  reflecting  on  the  feasibility  of  the  meas- 
ure, and  the  proper  time  for  carrying  it  into  effect. " 

He  determined  to  raise  an  army  for  the  invasion  of 
Mexico.  An  extensive  correspondence  with  various  dis- 
tinguished men  assured  him  of  their  countenance  and 
co-operation  in  the  event  of  a  war  with  Spain.  It  was 
upon  this  event  alone,  that  his  principal  force  had  con- 
sented to  join  his  expedition.  The  fates  appeared  to  favor 
the  enterprise.  The  difficulties  with  Spain  were  increas- 
ing; many  of  the  officers  and  soldiers  of  the  regular  army 
in  the  West  were  restless  and  dissatisfied  with  their  inac- 
tivity, and  the  forbearance  of  the  government;  General 
Wilkinson,  who  was  Burr's  confederate,  commanded  the 
garrison  on  the  frontier,  consisting  of  a  force  of  six  hundred 
regulars,  around  which  the  followers  of  Burr  were  to  form  ; 
Wilkinson  was  to  find  an  excuse  for  beginning  hostilities; 
Mexico  was  ready  to  rise;  the  aid  of  the  clergy  had  been 
secured ;  and  the  Catholic  bishop,  resident  at  Xew  Orleans, 
had  given  assurance  of  his  approval  and  co-operation. 

To  most  of  Burr's  followers,  this  enterprise  meant  only 
a  blow  at  Spain,  and  the  conquest,  and,  probably,  the  ulti- 
mate "  benevolent  assimilation  "  of  Mexico.  Of  this  there 
can  be  no  doubt,  for  such  men  as  General  Andrew  Jack- 
son, and  Admiral  Truxton,  who  were  in  his  confidence, 
believed  sincerely  in  Burr's  innocence,  and  stood  by  him 
to  the  last.  To  a  Tew  chosen  ones,  however.  Burr  seems 
to  have  revealed  decidedly  more  ambitious  designs.  Tt  is 
difficult  to  believe  that  he  ever  entertained  the  visionary 
notions  attributed  to  him  of  "  expelling  the  president,  and 
driving,  if  need  were,  the  Congress  into  the  Potomac." 
It  was  generally  believed,  however,  that  his  daring  and 
desperate  thirst  for  glory  had  led  him  to  dream  of  wear- 
ing the  diadem  of  the  Montezumas,  and  that  the  great 
disaffection  which  existed  at  that  time  in  the  West,  had 


5 

convinced  him  he  could  extend  his  empire  to  the 
Alleghanies. 

In  these  schemes  he  had  enlisted  General  Jonathan  Day- 
ton, an  ex-Speaker  of  the  House  of  Representatives,  and 
later  a  Senator  from  New  Jersey;  John  Smith,  an  ex- 
Senator  from  Ohio;  General  Adair,  and  oilier  prominent 
men;  but  his  main  reliance  was  upon  General  Wilkinson, 
who  betrayed  him  at  the  last  moment  by  communicating 
to  Mr.  Jefferson  the  contents  of  the  celebrated  cipher 
letter  he  received  from  Burr.  In  the  spring  of  1805,  after 
the  closing  of  the  session  of  Congress,  Burr  set  out  on  a 
journey  through  the  Western  States.  The  object  of  this 
seems  to  have  been  to  ascertain  the  sentiments  of  the 
people  of  the  West  upon  the  subject  of  a  separation  from 
the  Atlantic  States,  to  have  an  interview  with  General 
W  ilkinson,  to  enlist  recruits,  and  to  make  arrangements 
for  his  expedition.  His  sole  ostensible  object  was  the 
purchase  of  a  large  tract  of  land  of  Baron  Bastrop,  lying 
in  the  territory  of  Louisiana,  or  the  W  ashita  river,  con- 
taining four  hundred  thousand  acres,  upon  which  he  con- 
templated the  establishment  of  a  colony.  It  was  on  this 
journey  that  he  met  Blannerhassett,  an  Irish  gentleman 
of  distinguished  lineage,  and  renowned  for  his  wealth  and 
culture.  He  entered  heartily  into  all  Burr's  projects,  and 
his  beautiful  island  home  became  the  starting  point  of 
the  expedition.  In  September,  1806,.  Burr  commenced 
active  preparation  for  the  settlement  of  his  Washita  lands, 
as  he  gave  out.  Reports  were  soon  in  circulation  that  the 
expedition  had  a  highly  criminal  design,  but  these  reports 
were  attributed  to  the  pre-existing  prejudices  against 
Burr. 

The  preparations  were  made  at  Blannerhassett's  Island, 
but  Burr,  leaving  the  details  to  others,  proceeded  down 
the  Ohio  to  Kentucky,  where  he  had  hardly  landed. 


6 

before  the  District  Attorney  asked  for  bis  arrest,  on  the 
charge  of  being  engaged  in  a  military  expedition  against 
a  nation  at  peace  with  the  United  States.  Burr  hastened 
to  the  court  at  Frankfort,  as  soon  as  he  heard  of  the  pro- 
ceedings, and  insisted  upon  an  investigation.  The  arrest 
was  premature,  and  after  several  adjournments,  from 
November  third  to  different  dates,  on  December  fifth  the 
grand  jury  returned  "  Not  a  true  bill."  As  the  District 
Attorney  was  a  Federalist,  the  arrest  was  attributed  to 
party  spite,  and  the  acquittal,  as  it  was  called,  was  cele- 
brated at  Frankfort  by  a  brilliant  ball.  He  then  pro- 
ceeded to  Nashville  where  another  grand  ball  was  given 
in  his  honor.  The  country  was  by  this  time  all  ablaze 
with  excitement,  but  Burr's  great  popularity  with  the 
people  of  the  West,  and  the  general  impression  that  he 
was  being  persecuted,  gave  him  the  popular  sympathy 
and  support. 

Orders  had  been  given  to  seize  and  destroy  the  expedi- 
tion that  was  being  fitted  out  at  Blannerhassett's  Island, 
and  the  Ohio  militia  had  been  ordered  out  for  the  pur- 
pose. The  Governor  of  Mississippi  issued  a  proclamation 
charging  Burr  and  his  followers  with  being  conspirators, 
to  w  hich  Burr  replied  in  a  public  letter,  saying'  his  objects 
were  lawful  and  honorable.  Ignorant  of  Wilkinson's 
treachery,  he  went  with  the  flotilla  down  the  Ohio  and  the 
Mississippi,  stopping  boldly  at  the  forts  on  the  banks, 
and  asking,  and  receiving  favors.  He  was  again  arrested, 
a  grand  jury  impanelled,  and  witnesses  sent  in  to  them. 
Instead  of  an  indictment,  they  returned  that  Burr  had 
not  been  guilty  of  any  crime  or  misdemeanor,  and  went 
on  to  present  as  a  grievance,  the  military  expedition 
which  had  been  fitted  out  against  the  person  and  prop- 
erty of  Burr  as  unnecessary,  without  lawful  authority,  and 
as  destructive  of  personal  liberty;  and  the  Natchez  paper 


7 

said  Burr  and  his  men  were  handsomely  received  by  the 
best  people,  and  several  balls  were  given  to  them  as 
marks  of  respect  and  confidence.  The  court,  however, 
refused  to  give  Burr  a  legal  release,  and,  learning  that 
further  and  more  arbitrary  proceedings  were  intended 
against  him  by  the  Government,  and  perceiving  the  utter 
hopelessness  of  attempting  to  proceed,  and  feeling  that 
his  presence  could  only  embarrass  his  companions,  he  dis- 
guised himself  and  fled.  In  attempting  to  reach  Pensa- 
cola,  where  he  expected  to  find  refuge  aboard  of  a 
British  man-of-war,  he  was  discovered,  and  arrested  on 
the  Tombigbee  river,  in  what  is  now  Washington  county, 
Alabama. 

Burr's  arrest  was  accomplished  by  a  Major  Perkins, 
who  had  never  seen  him  before,  but  the  wonderful  bril- 
liancy of  Burr's  eyes,  of  which  he  had  heard  much,  lead 
him  to  watch,  and  finally  to  apprehend  him.  After  detain- 
ing him  for  two  weeks  in  Fort  Stoddart,  Major  Perkins 
started  north  with  him,  attended  by  a  military  guard.  At 
Chester,  South  Carolina,  Burr,  observing  a  small  collec- 
tion of  people,  got  off  his  horse,  and  succeeding  in  getting 
to  them,  asked  for  a  magistrate,  and  complained  of  being 
under  an  illegal  arrest  and  military  guard.  Before  any- 
thing could  be  done,  however,  Perkins,  who  was  a  very 
powerful  man,  seized  Burr,  and,  putting  him  on  his  horse, 
hurried  him  away,  for  the  remainder  of  the  journey  keep- 
ing out  of  the  way  of  people  as  far  as  possible. 

He  arrived  at  Richmond  on  the  twenty-sixth  of  March, 
having  been  under  guard  since  his  arrest  on  the  Tombig- 
bee river,  on  the  nineteenth  of  February.  On  the 
thirtieth  of  March  he  was  brought  before  Chief  Justice 
Marshall  on  the  charge  of  a  high  misdemeanor  in  setting 
on  foot  and  preparing  within  the  territory  of  the  United 
States,  a  military  expedition,  to  be  carried  on  against  the 


8 

dominions  of  Spain,  with  which  the  United  States  was  at 
peace,  and  also  of  treason  against  the  United  States. 
The  hearing  look  place  in  a  private  room  in  the  Eagle 
Tavern,  at  that  time  the  principal  hotel  in  the  city. 

Idle  evidence  introduced  on  this  occasion  consisted  of 
a  copy  of  the  record  in  the  case  of  Bollman  and  Swart- 
wont,  containing  the  affidavits  of  General  Eaton,  General 
Wilkinson  and  others,  and  the  verbal  testimony  of  Major 
Perkins.  After  the  evidence  a  motion  was  made  for  the 
commitment  of  the  prisoner  on  both  charges,  and,  as  it 
was  agreed  a  discussion  was  necessary,  the  hearing  was 
adjourned  —  Burr  being  bailed  in  the  sum  of  $5,000  for 
his  appearance  the  next  day  at  10  o'clock.  The  next 
morning  the  court-room  was  crowded,  but  Bun"  did  not 
appear  until  ten-thirty.  lie  walked  in  with  an  uncon- 
cerned air,  and  apologized  to  the  court,  claiming  he  had 
misapprehended  the  hour.  On  the  suggestion  of  coun- 
sel that  it  was  impossible  to  accommodate  the  spectators 
in  the  court-room,  Judge  Marshall  adjourned  the  hearing 
to  the  hall  of  the  House  of  Delegates  in  the  Capitol. 
This  room  was  afterwards  occupied  by  the  Confederate 
Congress. 

After  counsel  had  spoken.  Colonel  Burr  arose,  he  said, 
not  to  remedy  any  omission  of  his  counsel,  who  had  done 
great  justice  to  the  subject.  He  wished  only  to  state  a 
few  facts,  and  to  repel  some  observations  of  a  personal 
nature.  He  spoke  of  his  hastening  to  meet  the  charge 
against  him,  his  acquittal,  as  he  called  it,  protested  that 
his  designs  were  honorable,  and  would  have  been  useful 
to  the  United  States;  explained  his  flight;  that  it  was 
from  a  military  despotism,  and  the  tyranny  of  a  military 
escort  that  he  wished  to  be  delivered,  not  from  an  inves- 
tigation of  his  conduct,  nor  from  the  operation  of  the 
laws  of  his  country. 


9 

( )n  April  the  first,  Judge  Marshall  deliv  ered  his  opinion, 
refusing  to  commit  for  treason,  as  the  affidavits  presented 
were  insufficient,  they  having  been  so  held  in  the  ease  ot 
Bollman  and  Swartwout,  but  required  bail  for  his  appear- 
ance on  May  twenty-second,  to  answer  to  the  charge  of 
high  misdemeanor. 

Richmond  was  at  that  time  tilled  with  visitors,  and  her 
citizens  were  lavish  in  their  entertainments.  Washington 
Irving,  who  was  in  Richmond  as  a  young  lawyer  in  Burr's 
interest,  writes:  "  I  have  been  treated  in  the  most  polite 
and  hospitable  manner  by  the  most  distinguished  persons 
of  the  place,  those  friendly  to  Colonel  Burr  and  those 
opposed  to  him,  and  have  intimate  acquaintances  among 
his  bitterest  enemies.  I  am  absolutely  enchanted  with 
Richmond,  and  like  it  more  and  more  every  day.  The 
society  is  polished,  sociable,  and  extremely  hospitable,  and 
there  is  a  great  variety  of  distinguished  characters  assem- 
bled on  this  occasion,  which  gives  a  strong  degree  ot 
interest  to  passing  incidents." 

frving  believed  in  Burr's  innocence  and  was  sincerely 
devoted  to  him,  expressing  the  deepest  sympathy  for 
him.  "  The  ladies,"  he  writes,  "  have  been  uniform  in 
their  expressions  of  compassion  for  his  misfortunes,  and 
a  hope  for  his  acquittal ;  not  a  lady,  I  believe,  in  Richmond, 
whatever  be  her  husband's  sentiments  on  the  subject,  w  ho 
would  not  rejoice  in  seeing  Colonel  Burr  at  liberty." 

Colonel  Burr's  great  reputation,  the  suggestion  of  his 
persecutions;  the  decided  romance  that  surrounded  him; 
the  dignity  and  elegance  of  his  demeanor,  and  the  fasci- 
nating power  of  his  address,  could  not  fail  to  awaken 
interest  and  sympathy.  He  became  the  recipient  of  many 
attentions,  especially  from  the  opponents  of  Mr.  Jefferson. 

During  this  time,  and  before  the  session  of  the  court  at 
which  he  was  to  appear.  Mr.  W  ickham,  one  of  Burr's 


10 


counsel,  gave  a  large  dinner  party  to  which  the  Chief 
Justice  was  invited,  h  is  said  that,  after  accepting  the 
imitation.  Judge  Marshall  learned  that  Burr  was  to  be 
present,  but.  fearing  to  wound  the  feelings  of  Mr.  Wick- 
ham  by  refusing  to  attend,  he  went  to  the  dinner,  but 
had  no  intercourse  with  Burr.  Realizing  after  he  reached 
the  house,  the  impropriety  of  his  action,  he  soon  retired 
from  the  entertainment.  Another  account  is  that  he  was 
not  aware  that  Burr  was  to  be  a  guest  until  he  reached 
Mr.  Wickham's  house.  This  mistake  was  made  the  most, 
of  by  his  enemies,  and  gave  some  color  to  the  President's 
charge  of  partiality  on  the  part  of  the  Chief  Justice 
towards  Burr  and  his  associates.  Judge  [Marshall  was  a 
Federalist  in  politics,  and  the  Federal  party  were  now 
espousing  the  cause  of  Burr.  The  relations  between 
Judge  Marshall  and  Mr.  Jefferson  were  anything  but 
pleasant.  Marshall  had  written  the  Life  of  Washington, 
in  which  he  had  taken  occasion  to  criticise  severely 
Mr.  Jefferson  and  the  Republican  party.  The  opinion  the 
Chief  Justice  had  delivered  in  Marbury  v.  Madison  was 
regarded  by  Jefferson  as  a  defiance  to  him.  Marshall 
held  that  the  action  of  the  President  was  improper  in 
withholding"  commissions  fully  executed,  from  certain 
appointees  of  his  predecessors,  who  had  been  confirmed 
by  the  Senate,  but  that  the  Supreme  Court  had  no  juris- 
diction to  enforce  their  delivery  by  mandamus,  because, 
though  attempted  to  be  conferred  by  Congress,  it  was  not 
authorized  by  the  Constitution  —  thus  making  the  Con- 
stitution, as  construed  by  the  court,  the  supreme  law  of 
the  land,  annulling  an  act  of  Congress.  Both  of  these 
positions  were  highly  objectionable  to  Mr.  Jefferson. 
Then  Judge  Marshall  had  delivered  the  opinion  in  Little 
v.  Barrene,  in  which  it  was  held  that  the  President's 
orders  to  commanders  of  American  vessels,  to  search 


11 

vessels  leaving  French  ports,  were  illegal,  and  the  com- 
manders liable  in  personal  damages  for  obeying  them. 
Jefferson  was  also  deeply  offended  by  the  discharge  of 
Bollman  and  Swartwout,  who  were  associated  with  Burr: 

Mr.  Jefferson's  animosity  was  deep-seated.  Years  after 
his  retirement,  he  wrote  to  Mr.  Ritchie  that  the  judiciary 
were  undermining  the  foundations  of  our  confederated 
fabric.  "  An  opinion  is  huddled  up  in  conclave,  perhaps 
by  a  majority  of  one,  delivered  as  if  unanimous,  and  with 
the  silent  acquiescence  of  lazy  or  timid  associates,  by  a 
crafty  Chief  Justice,  who  sophisticates  the  law  to  his  mind 
by  the  turn  of  his  own  reasoning." 

Judge  Marshall,  by  his  very  nature,  was  an  opponent  of 
Mr.  Jefferson.  The  controlling  motive  with  Marshall  was 
the  order  of  society.  He  was  determined  that  the  ventral 
government  should  have  force  and  power  enough  to  pro- 
tect its  own  life,  and  to  enforce  its  lawful  authority.  With 
Jefferson  it  was  the  freedom  of  the  individual,  the 
unrestricted  power  of  the  States  in  dealing  with  matters 
of  local  concern. 

The  friends  of  Burr  had  also  a  complaint  against  Judge 
Marshall,  alleging  "  that  a  passage  in  his  opinion  in 
ex  parte  Bollman  and  Swart  wont  seemed  to  uphold  the 
doctrine  of  constructive  treason,  a  doctrine  so  murder- 
ously prominent  in  the  history  of  English  criminal  law." 

This  trying  position  in  which  Judge  Marshall  was 
placed,  was,  by  no  means,  relieved  by  the  personal  and 
political  turn  that  was  attempted  to  be  given  to  the  trial. 
Burr  contrived  from  the  very  start  to  quit  his  situation 
as  an  accused,  and  appeared  to  take  the  high  ground  of 
a  public  accuser,  and  an  assailer  of  others,  rather  than 
a  defender  of  himself,  or,  to  use  a  modern  expression, 
"  the  tiger  hunted  the  Frenchman  "  from  the  beginning 
to  the  end  of  the  trial.     It  was  repeatedly  declared  by  his 


12 

Counsel  that  the  country  had  been  filled  with  misrepresen- 
tations and  calumnies  against  Burr  through  the  agency 
of  the  Government,  which  was  bitterly  denounced;  that 
he  had  been  dragged  from  one  end  of  the  country  to  the 
other  by  a  military  force;  that  the  prejudice  of  the  coun- 
try had  been  enlisted  against  him;  and  that  the  prosecu- 
tion wished  to  draw  out  testimony  that  did  not  bear  upon 
the  case  itself,  but  was  only  intended  to  inflame  the  public 
prejudices  against  him.  As  W  illiam  Wirt  charged,  the 
object  of  Burr's  counsel  was  to  divert  the  public  attention 
from  Burr  and  point  it  to  another  quarter,  and,  if  possible, 
shift  the  popular  displeasure.  That  was  to  make  it  a 
political  question  —  a  question  between  Aaron  Burr  and 
Thomas  Jefferson. 

The  arguments  were  brilliant,  powerful  and  witty  —  at 
times  violent  and  bitter.  "  The  hell-hounds  and  blood- 
hounds of  persecution,"  exclaimed  Luther  Martin,  in  his 
fury,  "  have  been  let  loose  by  the  President  or  his 
instrumentality,  to  hunt  down  and  destroy  Colonel 
Burr/'  The  attacks  were  of  such  a  character  that  Wirt, 
in  an  eloquent  reply,  sharply  rebuked  the  court  for  allow- 
ing the  executive  branch  of  the  Government  to  be  abused 
and  reviled  by  the  defense  without  interruption.  Judge 
Marshall  evidently  felt  the  force  of  this,  as  he  stated  that 
the  counsel  on  both  sides  had  acted  improperly  in 
endeavoring  to  excite  the  prejudice  of  the  people. 

The  trial  was,  indeed,  remarkable  for  the  asperity  with 
which  it  was  conducted  on  both  sides.  Almost  at  the 
first  stage  of  its  progress,  the  court  was  obliged  to  com- 
ment upon  the  temper  displayed  by  counsel. 

On  May  twenty-second,  the  court  was  thronged  with 
spectators,  both  from  Virginia  and  other  States,  many  of 
them  distinguished  and  conspicuous  men.  The  United 
States  Marshal  had  been  told  to  secure  a  highly  intelligent 


13 

grand  jury,  and  he  had  got  together  some  of  the  most 
prominent  men  in  the  Commonwealth.  ( )n  the  bench 
presided  a  judge,  on  whose  intellectual  vigor  and  moral 
dignity  time  and  long  trial  have  conferred  a  eharacter 
of  grandeur  ;  seldom  has  such  an  array  of  eminent  counsel 
appeared  together  in  any  one  case ;  and  many  of  the  wit- 
nesses had  national  reputations.  In  that  delightful  little 
book,  a  The  British  Spy,"  written  by  W  illiam  Wirt,  four 
years  before  this  trial,  are  to  be  found  graceful  sketches 
of  the  judge  and  some  of  the  counsel  who  participated 
in  this  trial.  This  book  is  a  series  of  letters,  purporting 
to  be  written  by  an  Englishman  traveling  in  Virginia.  Of 
Judge  Marshall  he  says: 

"  The  Chief  Justice  of  the  United  States  is,  in  his  per- 
son, tall,  meagre,  emaciated;  his  muscles  relaxed,  and  his 
joints  so  loosely  connected  as  not  only  to  disqualify  him, 
apparently,  for  any  vigorous  exertion  of  the  body,  but  to 
destroy  everything  like  elegance  and  harmony  in  his  air 
and  movements:  indeed,  in  his  whole  appearance  and 
demeanor,  dress,  attitude,  gestures  —  sitting,  standing  or 
walking  —  he  is  as  far  removed  from  the  idolized  graces 
of  Lord  Chesterfield  as  any  other  gentleman  on  earth. 
To  continue  the  portrait :  His  head  and  face  are  small 
in  proportion  to  his  height ;  his  complexion  swarthy :  the 
muscles  of  his  face,  being  relaxed,  give  him  the  appear- 
ance of  a  man  of  fifty  years  of  age,  nor  can  he  be  much 
younger :  his  countenance  has  a  faithful  expression  of 
great  good  humor  and  hilarity ;  while  his  black  eyes  — 
that  unerring  index  —  possess  an  irradiating  spirit,  which 
proclaims  the  imperial  powers  of  the  mind  that  sits 
enthroned  within. 

"  This  extraordinary  man,  without  the  aid  of  fancy, 
without  the  advantages  of  person,  voice,  attitude,  gesture, 
or  any  of  the  ornaments  of  an  orator,  deserves  to  be  con- 


14 

sidered  as  one  of  the  most  eloquent  men  in  the  world  — 
if  eloquence  may  be  said  to  consist  in  the  power  of  seizing 
the  attention  with  irresistible  force,  and  never  permitting 
it  to  elude  the  grasp,  until  the  hearer  has  received  the 
conviction  which  the  speaker  intends. 

"  He  possesses  one  original  and  almost  supernatural 
faculty  —  the  faculty  of  developing  a  subject  by  a  single 
glance  of  his  mind,  and  detecting  at  once  the  very  point 
on  which  every  controversy  depends.  Xo  matter  what 
the  question,  though  ten  times  more  knotty  than  '  the 
gnarled  oak."  the  lightning  of  heaven  is  not  more  rapid 
nor  more  resistless,  than  his  astonishing  penetration. 
Nor  does  the  exercise  of  it  seem  to  cost  him  an  effort. 
On  the  contrary,  it  is  as  easy  as  vision.  I  am  persuaded 
that  his  eyes  do  not  My  over  a  landscape  and  take  in  its 
various  objects  with  more  promptitude  and  facility  than 
his  mind  embraces  and  analyzes  the  most  complex 
subjects.'' 

"  Gentlemen  of  the  profession,''  says  Parton,  "  who  had 
witnessed  the  trial,  who  saw  the  effective  dignity  with 
which  the  judge  presided  over  the  court,  who  heard  him 
read  those  opinions,  so  elaborate  and  so  correct,  though 
necessarily  prepared  on  the  spur  of  the  moment,  regarded 
it  as  the  finest  display  of  judicial  skill  and  judicial  rectitude 
which  they  had  ever  beheld."  By  the  Chief  Justice  sat 
Cyrus  Griffin,  Judge  of  the  District,  an  accomplished  man, 
and  an  able  and  experienced  judge. 

The  prosecution  was  represented  by  Colonel  George 
Hay,  District  Attorney  for  the  United  States.  He  was 
the  son-in-law  of  Colonel  James  Monroe  (afterwards 
President  of  the  United  States)  and  a  zealous  Democrat 
of  the  Jeffersonian  school.  lie  was  subsequently 
appointed  Judge  of  the  District.  On  the  preliminary 
motion.  Caesar  Rodney,  Attorney-General  of .  the  United 


T5 

States,  also  appeared.  Colonel  llav  was  assisted  by 
W  illiam  W  irt  and  Alexander  McRae.  McRae,  at  the 
time  of  the  trial,  was  Lieutenant-Governor  of  Virginia, 
and  afterwards  was  consul  at  Paris.  He  was  a  man  of 
very  considerable  ability,  and  of  fine  professional 
attainments. 

The  leading  counsel  was  William  W  irt.  Then  only 
thirty-five  years  of  age,  he  had  already  established  a  repu- 
tation as  a  brilliant  w  riter  and  speaker.  The  integrity  of 
his  heart,  the  vigor  of  his  faculties,  and  the  extent  of  his 
attainments,  had  won  for  him  general  admiration.  He 
was  the  most  beautiful  and  polished  speaker  at  the  bar. 
Parton  says:  "Among  the  lawyers  assembled  that  day 
within  the  bar,  there  w  as  not  one  whose  rising  to  speak  so 
instantly  hushed  the  spectators  to  silence.  A  handsome, 
fortunate,  happy,  brilliant,  high-minded  man  was  William 
Wirt,  the  toil  of  whose  lifetime  it  was  to  achieve  those 
solid  attainments  which  alone  make  brilliancy  of  utterance 
endurable  in  a  court  of  jttstice."  Many  eloquent  passages 
from  the  speeches  Mr.  Wirt  delivered  during  this  trial 
are  treasured  as  models  of  oratorical  skill.  The  exor- 
dium, in  which  he  repels  the  charge,  repeatedly  urged,  of 
personality  and  persecution  of  the  accused :  the  famons 
picture  of  Blannerhassett's  Island,  and  the  passage  in 
which  he  described  the  rhetorical  arts  employed  against 
him  by  the  opposite  counsel.  In  his  argument  on  the 
motion  to  commit  Burr  for  trial  in  Kentucky,  a  vein  of 
ridicule  enlivens  and  enforces  the  reasoning  into  which 
the  picture  of  the  blasted  ambition  and  the  daring  despair 
of  Burr  xis  interwoven  with  great  effect.  It  was  at  the 
personal  request  of  Mr.  Jefferson  that  he  appeared  for 
the  United  States.  It  is  said  that  the  friends  of  Burr 
designed  to  engage  him.  and  would  have  done  so,  had  he 
not  been  absent  from  Richmond  at  the  moment.  After- 


i6 

wards.  President  Madison  offered  Mr.  W  irt  a  place  in  his 
Cabinet,  but  he  declined  it.  preferring  to  follow  his  pro- 
fession. In  1816,  Madison  appointed  him  District  Attor- 
ney, and  the  following-  year  he  accepted  the  position  of 
Attorney-(  ieneral  under  Air.  Monroe,  l  ie  held  this  office 
for  twelve  years,  through  the  entire  administrations  of 
Mr.  Monroe  and  Mr.  Adams.  To  Air.  Wirt's  graceful 
pen  we  are  indebted  for  the  "Life  of  Patrick  Henry," 
which  was  the  best  tribute  to  that  great  patriot  until  the 
appearance  of  the  splendid  biography  by  his  distinguished 
grandson,  the  Hon.  William  Wirt  Henry. 

Colonel  Burr  was  represented  by  a  brilliant  array  of 
legal  talent.  The  best  known  of  these  was  Edmond  Ran- 
dolph, who  had  been  snccessively  Attorney-General  and 
Governor  of  Virginia,  and  Attorney-General  and  Secre- 
tary of  State  under  Washington.  He  possessed  great 
personal  advantages,  a  figure  large  and  commanding,  his 
features  uncommonly  fine;  and  his  whole  manner  that  of 
an  accomplished  and  engaging  gentleman.  His  char- 
acter, with  the  people,  was  that  of  a  great  lawyer  and 
eloquent  speaker. 

John  Wickham  -was,  in  fact,  the  leading  counsel  for 
Burr.  He  was  much  younger  than  Air.  Randolph,  and  in 
the  prime  of  his  physical  and  intellectual  vigor. 
Mr.  Wirt,  in  "  The  British  Spy,"  says:  "  The  qualities  by 
which  Air.  Wickham  strikes  the  multitude  are  his 
ingenuity  and  his  wit.  But  those  who  look  more  closely 
into  the  anatomy  of  his  mind,  discover  many  properties 
of  much  higher  dignity  and  importance.  This  gentleman, 
in  my  opinion,  unites  in  himself  a  greater  diversity  of 
talents  and  acquirements  than  any  other  at  the  bar  of 
Virginia.  He  has  the  reputation,  and  I  doubt  not  a  just 
one,  of  possessing  much  legal  science.  He  has  an  exqui- 
site and  highly-cultivated  taste  for  polite  literature;  a 


17 

genius  quick  and  fertile;  a  style  pure  and  classic  ;  a  stream 
of  perspicuous  and  beautiful  elocution  ;  an  ingenuity  which 
no  difficulties  can  entangle  or  embarrass ;  and  a  wit,  whose 
vivid  and  brilliant  coruscation  can  gild  and  decorate  the 
darkest  subject." 

Then,  there  was  Benjamin  Botts,  a  man  of  considerable 
ability,  and  of  a  clear,  logical  mind,  who  especially 
attracted  the  notice  and  commendation  of  the  Chief  Jus- 
tice. Also  Charles  Lee,  who  had  been  Attorney-General 
of  the  United  States  and  a  certain  "  Jack  Baker,"  a  merry 
fellow  with  plenty  of  horse  wit  and  an  infectious  laugh; 
no  speaker  or  lawyer,  but  "  the  best  of  good  fellows." 
He  took  part  just  enough  in  the  trial  to  get  his  name  once 
or  twice  in  the  reports  and  thereby  saved  his  name  from 
oblivion.  Washington  Irving,  too,  was  present,  "  on  an 
informal  retainer  from  some  of  the  friends  of  Colonel 
Burr,  who  thought  he  might  in  some  way  or  other  be  of 
service  with  his  pen." 

The  counsel  of  the  widest  reputation,  however,  was 
Luther  Martin,  ex-Attorney-Ceneral  of  Maryland.  "  who," 
says  Parton,  "  in  the  single  particular  of  legal  learning, 
was  the  first  lawyer  of  his  day.  His  memory  was  as  won- 
derful as  his  reading,  so  that  his  acquirements  were  at 
instantaneous  command.  Burr  had  become  acquainted 
with  him  at  Washington  three  years  before,  during  the 
impeachment  of  Judge  Chase,  in  whose  defense  he  greatly 
distinguished  himself."  At  that  trial  Aaron  Burr,  then 
Vice-President  of  the  L  nited  States,  presided  with  a 
dignity  and  impartiality  that  won  the  praise  of  friends  and 
enemies  alike.  Martin  was  coarse  in  his  manners, 
ungrammatical  in  his  language,  and  careless  in  his  dress 
and  person.  He  was  "  a  mighty  drinker,"  and.  though 
able  to  carry  an  incredible  cargo  of  brandy,  often 
exhibited  unmistaken  signs  of  being  over-laden.    He  was 


i8 

regarded  as  a  powerful  man.  possessing  many  excellent 
qualities  of  the  heart  as  well  as  the  head.  He  entered 
upon  the  defense  of  Colonel  Burr  with  all  the  zeal  that 
the  warmest  friendship  for  his  client,  and  intense  political 
enmity  to  Jefferson  and  his  administration,  could  inspire 
in  his  ardent  and  passionate  nature. 

The  real  leader  of  the  defense,  however,  was  Burr  him- 
self. Xot  a  step  was  taken,  not  a  point  was  conceded, 
without  his  express  concurrence.  He  appeared  in  court 
attired  with  scrupulous  neatness,  in  black,  with  powdered 
hair  and  queue.  His  manner  was  dignity  itself  —  com- 
posed, polite,  confident,  impressive.  He  had  the  air  of  a 
man  at  perfect  peace  with  himself,  and  simph  intent  upon 
the  business  of  the  scene.  It  was  observed  that  he  never 
laughed  at  the  jokes  of  the  counsel,  which,  at  some  stages 
of  the  trial,  were  numerous  and  good.  His  speeches  were 
short,  concise,  exact.  (Parton.)  He  never  lost  his  tem- 
per, and  never,  under  any  provocation,  was  betrayed  into 
an  offensive  personal  retort. 

The  panel  of  the  grand  jury  was  composed  of  well- 
known  and  distinguished  men ;  I  will  mention  some  of 
them:  John  Randolph,  of  Roanoke,  who  was  chosen  fore- 
man, was  afterwards  I hiked  States  Senator  and  Minister 
to  Russia;  William  B.  Giles  and  Wilson  Cary  Nicholas, 
both  United  States  Senators,  and  both  afterwards  Gover- 
nors of  Virginia;  Littleton  Waller  Tazewell,  the  dis- 
tinguished lawyer  and  statesman,  who,  both  at  the  bar.  in 
the  Senate  of  the  United  States,  and  as  Governor  of  Vir- 
ginia was  classed  with  the  foremost  in  the  lajid;  Joseph. 
C.  Cabell,  a  man  of  rare  genius  and  accomplishments,  the 
father  of  the  James  River  and  Kanawha  Canal,  and  the 
originator,  and.  with  Mr.  Jefferson,  the  founder  of 
the  University  of  Virginia;  James  Pleasants,  a  dis- 
tinguished lawyer,  afterwards  United  States  Senator  and 


19 

Governor  of  Virginia;  James  Barbour,  an  eminent  lawyer., 
and  afterward  United  States  Senator,  Governor  of  Vir 
ginia,  a  Cabinet  member  and  Minister  to  England ; 
William  Daniel,  a  distinguished  judge,  whose  son  was  the 
late  Judge  William  Daniel,  of  the  Court  of  Appeals  of 
Virginia,  and  whose  grandson  is  the  present  senior 
United  States  Senator  from  Virginia,  John  W,  Daniel ; 
James  Garnett,  Member  of  Congress,  and  an  able  author; 
General  Robert  Taylor;  and  the  others  all  men  of  high 
social  standing,  distinction  and  ability. 

After  examining  the  panel,  Burr  objected  to  certain  of 
them  as  improperly  summoned  —  the  marshal  having 
excused  some  grand  jurors,  who  had  once  been  sum- 
moned, and  substituted  others  on  the  panel  in  lieu  of  them. 
In  this  the  court  sustained  him.  He  then  claimed  his 
right  to  challenge  for  favor,  and  two  others  were  stricken 
off.  Finally  the  grand  jury  were  sworn.  After  the  Chief 
Justice  had  charged  them,  dwelling  on  the  definition  of 
treason  and  the  testimony  requisite  to  convict.  Burr  asked 
the  court  to  instruct  them  as  to  the  admissibility  of  certain 
evidence  which  he  supposed  would  be  laid  before  them. 
Mr.  Hay  hoped  the  court  would  proceed,  as  it  had  always 
done  before,  and  grant  no  particular  indulgence  to  Colonel 
Burr,  who  stood,  he  said,  on  the  same  ground  with  every 
other  man  charged  with  crime.  "  Would  to  God,"  said 
Burr,  "  T  did  stand  on  the  same  ground  with  every  other 
man.  This  is  the  first  time  I  have  been  permitted  to 
enjoy  the  rights  of  a  citizen."  He  then  referred  to  his 
treatment  while  under  a  military  guard.  After  some  dis- 
cussion, the  Chief  Justice,  observing  he  had  not  made  up 
his  mind  on  the  questions  raised.  Mr.  Hay  pledged  him- 
self that  no  evidence  should  be  laid  before  the  grand  jury 
without  notice  being  first  given  to  Burr  and  his  counsel, 
and  the  discussion  was  postponed. 


20 

The  next  clay  the  prosecution  gave  notice  of  a  motion 
to  commit  Burr  on  a  charge  of  high  treason.  On  the 
previous  examination,  they  said  there  was  no  evidence  of 
an  overt  act,  and  he  was  committed  for  a  misdemeanor 
only.  It  was  contended  for  Burr  that  the  court  had  no 
power  to  commit  after  the  grand  jury  had  been 
empanelled,  and  that  if  it  had,  under  the  circumstances 
of  this  case,  the  court  ought  to  restrain  its  exercise. 
After  a  lengthy  debate,  the  court  held  that  the  motion 
could  be  made  before  any  action  was  taken  by  the  grand 
jury,  and  directed  the  evidence  to  be  introduced,  on  which 
it  would  rest.  Then  began  a  contest  as  to  the  order  m 
which  the  evidence  should  be  introduced  —  it  being 
insisted  for  Burr  that  no  evidence  of  treasonable  intention 
should  be  given  until  it  was  first  proved  that  an  overt  act 
of  treason  had  been  committed :  the  prosecution  wishing 
to  introduce  the  evidence  in  the  chronological  order. 
After  much  discussion,  the  Chief  Justice  said  that  no  evi- 
dence, certainlv,  had  any  bearing  on  the  case,  unless  an 
overt  act  was  proved ;  however,  he  would  let  the  counsel 
pursue  their  own  course,  but  trusted  to  them  not  to  pro- 
duce anything  that  did  not  bear  upon  the  case. 

But  little  headway  could  be  made  by  the  prosecution 
without  General  W  ilkinson,  who  had  been  ordered  by  the 
President  to  leave  his  post  at  New  Orleans  and  attend 
the  court  at  Richmond.  W  hile  they  were  waiting  for 
him.  Burr  moved  the  court  to  issue  a  subpoena  to  the 
President,  with  a  clause  requiring  him  to  produce  a  letter 
from  General  Wilkinson,  and  also  certain  orders  of  the 
Army  and  Navy  Departments,  which  he  claimed  con- 
tained instructions  to  destroy  his  person  and  property 
while  on  a  lawful  expedition.  This  produced  an  able 
debate  that  lasted  five  days,  during  which  Mr.  Hay  prom- 
ised  to  write  for  the  papers,  but  Burr's  counsel  said  they 


21 

might  not  be  sent,  and  that  they  did  not  feel  disposed  to 
rely  on  the  favors  of  an  adverse  party.  The  objections 
urged  were,  that  until  the  grand  jury  found  a  true  bill, 
the  party  accused  was  not  entitled  to  subpoenas,  nor  to 
the  aid  of  the  court  to  obtain  testimony;  that  a  subpoena 
duces  tecum  could  not  be  directed  to  the  President,  and 
ought  not  to  be  in  this  case;  and  that  it  was  inexpedient 
to  reveal  State  secrets.  In  any  event,  it  was  not  a  process 
of  right,  but  the  application  was  addressed  to  the  discre- 
tion of  the  court.  On  the  fourteenth,  the  Chief  Justice 
delivered  an  opinion  granting  the  motion,  in  which  he 
said,  that  there  was  no  exception  whatever  to  the  pro- 
vision of  the  Constitution  (eighth  amendment  ).  and  of  the 
statute,  which  give  to  the  accused  a  right  to  the  compul- 
sory  process  of  the  court ;  that  they  were  general,  and  no 
one  could  claim  exemption  from  them  :  that  if  the  Presi- 
dent's duties  demanded  his  time  when  his  attendance  on 
court  was  required,  that  would  rather  constitute  a  reason 
for  not  obeying  the  process  of  court,  than  a  reason 
against  its  being  issued.  "  The  guard  furnished  to  this 
high  officer,"  said  he.  "  to  protect  him  from  being  harassed 
by  vexations  and  unnecessary  subpoenas,  is  to  be  looked 
for  in  the  conduct  of  the  court  after  those  subpoenas  have 
issued,  not  in  any  circumstance  which  is  to  precede  their 
being  issued." 

If  the  object  of  this  motion  was  to  annoy  the  President, 
it  certainly  accomplished  its  purpose.  Both  the  decision 
and  the  character  of  the  debate  aroused  Mr.  Jefferson  to 
anger.  Luther  Martin  insisted  that  the  bodily  presence 
of  the  President  might  and  should  be  compelled  by  the 
court,  and  was  unsparing  in  his  attacks  upon  Mr.  Jeffer- 
son. The  President  wrote  to  Hay,  denouncing  Martin, 
called  him  "  an  unprincipled,  impudent  Federalist  bull 
dog,"  charged  him  with  being  a  co-conspirator  with  Burr, 


22 

and  suggested  his  arrest  and  prosecution.  He  directed 
the  Attorney-General  to  turn  over  to  Colonel  Hay  the 
letter  of  Wilkinson,  Colonel  Hay  to  produce  only  such 
parts  as  he  thought  proper  and  pertinent  to  Burr's 
defense,  and  asked  for  more  specific  description  of  the 
orders  of  the  Army  and  Navy  desired.  He  refused  to 
appear  in  court  as  a  witness,  intimating  that  if  the  court 
attempted  to  enforce  its  writ,  he  would  forcibly  resist  it  ; 
that  the  Constitution,  which  enjoined  the  President's  con- 
stant agency  in  the  concerns  of  six  millions  of  people,  was 
a  law  paramount  to  that  which  calls  on  him  on  behalf  of  a 
single  individual :  that  the  leading  principle  of  our  Consti- 
tution was  the  independence  of  the  legislative,  executive 
and  judiciary  of  each  other,  and  none  were  more  jealous 
of  this  than  the  judiciary:  that  if  he  were  subject  to  the 
commands  of  the  latter,  the  courts  would  bandy  him  from 
pillar  to  post,  and  withdraw  him  entirely  from  his  consti- 
tutional duties.  The  court,  although  moved  to  do  so,  did 
not  attempt  to  enforce  its  process  by  attachment,  but  let 
the  matter  drop,  with  the  idea  that,  although  the  accused 
had  a  right  to  have  the  writ  issue,  the  1 'resident  had  the 
right  to  say  whether  his  duties,  as  chief  executive,  pre- 
vented his  obeying  it  in  person. 

Another  episode  that  occurred  during  this  time  was  the 
attempt  of  the  prosecution  to  make  Dr.  Bollman  testify. 
Hay  had  obtained  a  pardon  for  him  from  the  President, 
for  the  purpose  of  preventing  his  claiming  that  he  would 
criminate  himself  by  testifying.  The  reputation  Dr.  Boll- 
man  had  gained  by  his  daring  attempt  to  rescue  Marquis 
La  Fayette  made  him  a  conspicuous  figure,  both  in  this 
country  and  in  Europe.  Hay  told  the  court  that 
Dr.  1 'oilman  would  neither  positively  accept  nor  decline 
the  pardon.  lie  now.  however,  positively  declined  it. 
although  Mr.  Hay,  in  the  most  dramatic  manner,  inti 


mated  that  it  would  lead  to  his  being  indicted  For  treason. 
Then  I  [ay  insisted  that  he  was  already  pardoned,  and  must 
testify.  Burr's  counsel  claimed  that  he  was  not,  and.  in 
any  event,  the  pardon  could  not  be  effectual  before  it 
was  pleaded  to  an  indictment  in  open  court,  and  it  would 
not  protect  him  against  an  indictment  by  the  grand  jury. 

General  Wilkinson,  who  had  been  looked  tor.  day  alter 
day.  and  week  after  week,  at  la^t  arrived.  Washington 
Irving  writes  (June  twenty-second):  "Wilkinson,  yon 
observe,  has  arrived.  The  bets  were  against  lUirr,  thai 
he  would  abscond,  should  Wilkinson  come  to  Richmond, 
but  he  still  maintains  his  ground,  and  still  enters  the  court 
every  morning  with  the  same  serene  and  placid  air  that 
he  would  show,  were' he  brought  here  to  plead  another's 
cause,  and  not  his  own.'" 

Wilkinson  had  taken  his  time  on  the  journey,  and  got 
to  Richmond  only  on  June  fourteenth.  The  next  day  he 
appeared  in  court  in  full  uniform.  As  the  portly  form  of 
the  general  advanced  to  the  clerk's  desk  to  be  sworn,  all 
eyes  were  turned  upon  him,  except  those  of  Burr,  who 
was  conversing  with  his  counsel.  Presently  he  turned 
slowly  around,  and  as  his  brilliant  eyes  met  those  of  \\  il- 
kinson,  they  gave  an  expression  of  withering  contempt. 
Wilkinson's  experience  in  Richmond  was  a  most  dis- 
agreeable one.  He  was  remembered  principally  for  his 
connection  with  the  Conway  cabal,  formed  to  displace 
General  Washington  from  the  command  of  the  Conti- 
nental Army.  As  Burr  arose  in  favor  in  Richmond, 
W  ilkinson  became  more  and  more  the  object  of  dislike 
As  it  was  necessary  to  discredit  his  testimony,  the  counsel 
went  out  of  their  way  to  denounce  him.  and  a  motion 
was  made,  and  vigorously  pressed,  for  an  attachment 
against  him  for  attempting  to  obstruct  the  free  adminis- 
tration of  justice  by  using  his  military  authority  to  intimi- 
date and  coerce  witnesses.     Considering  himself  insulted 


24 

by  John  Randolph  while  before  the  grand  jury,  he  chal- 
lenged him,  and  was  told  by  Randolph  in  reply:  "  I  cannot 
descend  to  your  level."  Randolph  had,  indeed,  most  bit- 
terly denounced  him.  and  wrote  of  him  to  a  friend: 

Wilkinson  is  the  only  man  I  ever  saw  who  was  from  bark 
to  core  a  villain.  *  *  *  Perhaps  yon  never  saw 
human  nature  in  so  degraded  a  situation  as  in  the  person 
of  Wilkinson  before  the  grand  jury."  And  he  declared 
he  would  not  have  voted  for  the  indictment  of  Burr,  had 
he  not  believed  Wilkinson  would  have  been  indicted  also. 
It  is  said  that  when  Wilkinson  entered  the  jury  room  in 
uniform,  with  his  sword  by  his  side,  Randolph  called  in 
(he  marshal  and  .said  to  him:  "  Take  that  man  out  and  d; 
arm  him.  1  will  allow  no  attempt  to  intimidate  the  jur\ . 
Swartwout,  of  Xew  York,  meeting  Wilkinson  on  a  narrow 
sidewalk,  threw  him  into  the  street,  and  afterwards  chal- 
lenged him,  and.  upon  Wilkinson  declining  to  accept,  on 
the  ground  that  he  did  not  recognize  traitors  as  his  equals, 
he  posted  him  as  a  coward  in  the  Virginia  Gazette. 

On  June  twenty-fourth,  the  grand  jury  brought  in 
indictments  against  Aaron  Burr  for  treason  and  also  for 
misdemeanor.  Similar  indictments  were  brought  in 
against  Blannerhassett,  and,  on  the  next  day,  against  five 
of  their  associates,  among  them  ex-Senator  Smith,  of 
Ohio,  and  ex-Senator  Jonathan  Dayton,  of  Xew  Jersey. 

Burr  was  committed  to  the  custody  of  the  marshal,  who 
took  him  to  the  city  jail,  but,  on  the  following  day,  on 
affidavits  of  his  counsel,  that  confinement  in  the  jail  would 
endanger  his  health  and  prevent  his  having  access  to  his 
counsel,  the  court  permitted  him  to  "  be  removed  to  his 
Former  lodgings,  near  the  Capitol,  provided  they  could 
be  made  sufficiently  strong  for  safe  keeping."  This  was 
done  to  the  satisfaction  of  the  court.  This  building  stands 
on  the  corner  of  Ninth  and  Broad  streets,  and  is  known 
as  Blair's  Drug  Store. 


^5 

After  another  very  long  discussion,  the  court  finally 
decided  to  order  a  venire  of  forty- eight  petit  jurors,  twelve 
of  whom,  at  least,  were  to  be  summoned  from  Wood 
county,  in  which  Blannerhassett's  Island  was  situated,  and 
where  the  act  of  treason  was  laid.  In  order  to  enable 
the  marshal  to  summon  the  twelve  men  from  Wood 
county,  on  June  twenty-ninth  the  court  adjourned  to 
August  third.  The  District  Attorney  insisted  that  Burr 
should  be  moved  to  a  place  of  greater  safety  than  his 
lodgings,  and  it  looked  as  if  he  would  have  to  go  to  the 
jail.  The  situation  was  relieved,  however,  by  Governor 
Cabell's  putting  at  the  disposal  of  the  court  apartments 
in  the  new  part  of  the  State  penitentiary.  Burr's  situation 
here,  says  Parton,  was  extremely  agreeable.  He  had  a 
suite  of  three  rooms,  in  the  third  story,  extending  one 
hundred  feet,  where  he  was  allowed  to  see  his  friends 
without  the  presence  of  a  witness.  His  rooms  were  so 
thronged  with  visitors,  at  times,  as  to  present  the  appear- 
ance of  a  levee.  Servants  were  continually  arriving  with 
messages,  notes  and  inquiries,  bringing  fruits  and  delica- 
cies of  every  description  —  presents  from  the  ladies  of 
the  city,  who  esteemed  him  a  persecuted  martyr.  The 
jailer,  too,  was  all  civility,  and  Burr  gives  a  very  amusing 
account  of  the  deference  paid  him  by  the  officials. 

When  the  court  met  on  August  third,  the  hall  was 
crowded  with  anxious  spectators.  Burr,  accompanied  by 
his  son-in-law.  Governor  Alston,  of  South  Carolina, 
entered  the  room  in  his  usual  bright  and  good-humored 
manner.  Fourteen  days  elapsed  before  a  jury  were 
sworn.  Few,  if  any,  of  the  Wood  county  men  were 
accepted,  and  the  jury  was  composed  of  men  who  had 
been  summoned  from  k>  the  body  of  the  district."  These 
were  all  of  high  social  position,  and  most  of  them  men  of 
eminence.  The  foreman  of  the  jury  was  General  Edward 
Carrington,  who  had  been  offered  by  Washington  a  place 


in  his  Cabinet.  He  was  Vice-President  of  the  Society  of 
Cincinnati  and  a  man  of  large  wealth  and  influence. 
When  he  was  examined,  he  stated  that  he  had  formed  an 
unfavorable  opinion  of  Colonel  Burr,  and  that  he  had 
expressed  the  opinion  that  in  such  an  extreme  case  he 
would  have  acted  in  the  manner  General  Wilkinson  had 
done.  Instead  of  objecting  to  him.  Burr  asked  him : 
"  Have  you  any  prejudice.  General,  of  a  more  settled  kind 
or  more  ancient  date  against  me?"  He  replied:  "  None 
at  all."  "  He  is  elected,"  said  Burr.  All  the  venire  of 
forty-eight  had  formed  unfavorable  opinions.  But  four 
men  were  found  whose  opinions  were  sufficiently 
undecided  to  admit  of  their  acceptance,  and  a  second 
venire  of  forty-eight  was  summoned,  with  almost  like 
results.  Burr  was  an  excellent  judge  of  men,  and  many 
who  said  the}'  had  expressed  strong  convictions  against 
him,  were  accepttl  by  him.  He  usually  said  to  them: 
"  Notwithstanding  your  impressions,  I  can  rely  upon  your 
integrity  and  impartiality."  One  young  fellow,  when 
called,  said  he  was  disqualified,  because  he  had  said  to  a 
friend  that  he  had  come  to  town  with  a  hope  of  being 
placed  on  the  jury,  and  if  he  was,  he  would  hang  Colonel 
Burr  at  once  without  further  inquiry.  "  Perhaps,"  said 
Burr,  "  the  words  were  used  through  levity.  Do  you 
think  they  would  be  sufficient  to  warp  your  judgment?" 
To  this  he  answered:  "  No."  "  Then,"  said  Burr,  "  you 
are  not  disqualified."  It  must  be  remembered,  however, 
with  what  an  unusual  class  of  jurors  Burr  w  as  dealing. 

On  August  seventeenth  the  jury  was  sworn,  and  after 
the  statement  of  the  case  was  made  by  counsel,  a  contest 
arose  as  to  the  order  in  which  the  testimony  should  be 
offered,  the  defense  claiming  that  the  overt  act  of  treason 
should  be  first  proved  before  any  testimony  could  be 
allowed  connecting  the  accused  with  it.  After  a  long- 
debate,  the  court  decided  to  allow  the  prosecution  to 


27 

introduce  their  evidence  in  the  order  they  thought  best, 
reserving  the  right  to  exclude  such  as  appeared  to  be 
irrelevant. 

A  great  number  of  witnesses  were  present,  among" 
them  many  well-known  men,  as  General  Wilkinson,  Gen- 
eral William  Eaton,  Admiral  Truxton,  Dr.  Erick  Bollman, 
Benjamin  Stoddert,  Andrew  Jackson,  Stephen  Decatur 
and  others. 

Article  III,  section  3  of  the  Constitution  provides,  that 
"  treason  against  the  United  States  shall  consist  in  levy- 
ing war  against  them,  or  in  adhering  to  their  enemies, 
giving  them  aid  and  comfort.  No  person  shall  be  con- 
victed of  treason,  unless  on  the  testimony  of  two  witnesses 
to  the  same  overt  act,  or  on  confession  in  open  court. 
Congress  shall  have  power  to  declare  the  punishment  for 
treason,"  etc.  Congress  had  declared  that  the  punish- 
ment should  be  death. 

The  indictment  charged  Burr  with  levying  war  against 
the  United  States  at  Blannerhassett's  Island,  December 
10,  1806,  and  with  proceeding  down  the  Ohio  river  with 
the  traitorous  design  of  taking  possession  of  Xew  Orleans, 
all  within  the  district  of  Virginia  and  jurisdiction  of  the 
court. 

From  the  beginning  the  law  had  been  laid  down  by  the 
defense  as  follows : 

First.  It  must  be  proved  that  there  was  an  actual  war. 
Secondly.  The  war  must  not  only  have  been  levied,  but 
the  accused  must  be  proved  to  have  committed  an  overt 
act  of  treason  in  that  war.  Thirdly.  The  overt  act  by 
the  accused,  in  an  actual  war,  must  be  proved  to  have 
been  committed  within  the  district  in  which  the  trial 
takes  place,  and.  Fourthly,  The  same  overt  act  must  be 
proved  by  two  witnesses. 

A  number  of  witnesses  were  examined.  The  evidence 
proved  that  numbers  of  persons,  amounting  to  some  thirty 


28 

or  more,  had  assembled  in  warlike  array,  on  Blanner- 
hassett's  Island,  in  the  Ohio  river,  near  Marietta,  Decem- 
ber jo,  1806,  with  a  purpose,  as  it  was  affirmed,  to  proceed 
down  the  river,  and,  with  the  assistanee  of  others,  to  seize 
the  city  of  New  Orleans,  under  the  pretense  of  the  ulti- 
mate invasion  of  Mexico.  It  was  not  proved  that*  Burr 
was  present  with  these  men  on  the  island.  All  the  evi- 
dence of  the  overt  act  at  their  command  having  been  intro- 
duced, the  prosecution  was  about  to  introduce  collateral 
evidence,  intended  to  connect  Burr  with  the  occurrence, 
the  overt  act  not  having  been  proved,  as  required  by  the 
Constitution,  and  it  being  admitted  that  Burr  was  not'  on 
the  island  at  the  time.  His  counsel,  therefore,  moved 
the  court  to  arrest  the  further  examination  of  witnesses, 
on  the  ground  that  such  testimony  was  irrelevant  and 
inadmissible. 

Upon  this  motion  arose  the  greal  and  decisive  argu- 
ment in  the  case.  It  began  011  the  twentieth  and  closed 
on  the  twenty-ninth  of  August. 

The  article  of  the  Constitution  defining  treason  is  in  the 
exact  words  of  the  statute  of  Edward  111,  passed  in  the 
twenty-fifth  year  of  his  reign.  This  statute  had  been  the 
subject  of  numerous  decisions,  and  had  been  often  dis- 
cussed by  text  writers.  In  many  of  these  decisions,  the 
construction  of  the  statute  had  been  confounded  with 
the  doctrine  of  compassing  the  king's  death,  which  had 
grown  up  and  been  adopted  by  the  courts  for  the  attain- 
ment of  the  great  object  of  providing  a  safeguard  for  the 
life  of  the  king.  All  the  authorities  in  England  and 
America  were  thoroughly  examined  and  considered,  and 
their  application  to  the  question  before  the  court  dis- 
cussed with  great  ingenuity,  skill  and  eloquence.  Most 
learned  arguments  were  made  upon  the  application  and 
effect  of  the  Constitution  of  the  United  States,  and  upon 
the  question  of  whether  there  was  any  common  law 


29 

belonging  to  the  United  States  at  large,  especially  in 
criminal  cases.  A  wide  scope  was  given  counsel  for  argil 
ment,  but  in  a  paper  of  this  character  ii  will  be  impossible 
to  give  even  an  outline  of  the  various  subjects  discussed 
in  the  ten  days  of  argument.  Mr.  Parton  very  justly 
saws:  "  It  was  doubtless  the  richest  display  of  legal  knowl- 
edge and  ability  of  which  the  history  of  the  American  Bar 
can  boast." 

The  Chief  Justice  delivered  his  famous  opinion,  sustain- 
ing the  motion,  on  August  the  thirty-first.  lie  decided 
that  the  testimony  introduced  did  not  come  up  to  the 
requirements  of  the  Constitution,  and.  consequently  no 
evidence  to  connect  Burr  with  the  facts  proved  was  admis- 
sible. He  held  that  there  must  not  only  be  an  assemblage 
of  armed  men,  but  the  employment  of  actual  force,  to  con- 
stitute levying  war.  In  this  most  elaborate  and  profound 
opinion,  which  occupied  nearly  three  hours  in  reading,  the 
Chief  Justice  excluded  from  the  case  a  large  amount  of 
testimony  which  might  have  shown  Burr's  intentions. 

As  soon  as  the  opinion  had  been  delivered,  Mr.  Hay 
asked  the  court  to  grant  them  time  to  consider  it.  but, 
haying  nothing  to  offer  the  next  morning,  the  case  was 
submitted  to  the  jury  without  argument,  who  in  a  short 
time,  returned  the  following  verdict:  "  We,  the  jury,  say 
that  Aaron  Burr  is  not  proved  to  be  guilty  under  this 
indictment  by  any  evidence  submitted  to  us.  We,  there 
fore,  find  him  not  guilty." 

Burr  sprang  from  his  seat  and  objected  to  this  verdict 
as  unusual,  informal  and  irregular,  and  he  asked  that  it 
might  be  given  in  the  usual  way  —  simply  "  Not  guilty." 

"  They  have  no  right  to  return  a  written  verdict  at  all." 
said  Burr  ;  "  they  have  no  right  to  depart  from  the  usual 
form."  He  then  called  for  the  recital  of  the  directions 
given  the  jury  by  the  clerk.  They  were  read  and  end  as 
follows  : 


3Q 

"If  you  find  him  guilty,  you  are  to  say  so;  if  not  guilty, 
you  are  to  say  so,  and  no  more." 

"  The  jury  cannot  be  indulged,"  said  Burr.  "  They 
have  defaced  a  paper  belonging  to  the  court,  by  writing 
upon  it  words  which  they  have  no  right  to  write.  They 
ought  to  be  sent  back."  Some  of  the  jury  seemed  indis- 
posed to  make  the  change,  and,  after  a  discussion,  the 
Chief  Justice  remarked  that  the  verdict  was,  in  effect, 
the  same  as  a  verdict  of  acquittal,  and  decided  that  it 
should  remain  as  found  by  the  jury  ;  and  that  an  entry 
should  be  made  on  the  record  of  "  Not  guilty." 

On  the  ninth  of  September,  Burr  was  again  arraigned, 
upon  an  indictment  for  a  misdemeanor,  which  consisted 
of  seven  counts,  the  substance  of  which  were  that  Aaron 
Burr  did  set  on  foot  a  military  enterprise,  to  be  carried 
on  against  the  territory  of  a  foreign  prince,  viz.,  the 
Province  of  Mexico,  which  was  within  the  territory  of  the 
King  of  Spain,  with  whom  the  United  States  were  at 
peace.  . 

After  the  prosecution  had  examined  some  of  their  wit- 
nesses, and  the  court  had  decided  that  the  testimony  of 
others  was  not  relevant,  the  District  Attorney  made  a 
motion  to  discharge  the  jury.  To  this  motion  Burr 
objected,  insisting  upon  a  verdict.  This  was  on  the 
fifteenth  of  the  month.  The  court,  being  of  opinion  thai 
the  jury  could  not,  in  tin's  stage  of  the  case,  be  discharged, 
without  the  consent  of  the  accused,  and  that  they  must 
give  a  verdict,  they  accordingly  retired,  and  very  soon 
returned  with  the  verdict  of  "  Not  guilty." 

The  result  was  a  great  disappointment  to  the  prosecu- 
tion. "  Marshall  has  stepped  in  between  Burr  and 
death, "  wrote  Wirt  to  Dabney  Carr. 

Burr,  having  been  discharged  on  both  indictments, 
those  against  Blannerhassctt  and  the  others  were  not 
prosecuted.    Burr  and  Blannerhassett  were  required  to 


31 

enter  into  a  recognizance  in  the  sum  of  $3,000  each,  for 
their  appearance  at  Chillicothe,  to  answer  to  a  charge  of 
misdemeanor,  "  For,  that  whereas,  they  prepared  an 
armed  force  whose  destination  was  the  Spanish  Terri- 
tory/' etc.    Of  this,  however,  no  notice  was  even  taken. 

In  a  letter  to  his  daughter.  Burr  wrote:  "  Mr.  Hay 
immediately  said  that  he  should  advise  the  Government 
to  desist  from  further  prosecution.  That  he  has  actually 
so  advised,  there  is  no  doubt." 

Blannerhassett,  in  his  journal  kept  during  the  trial,  says, 
when  he  visited  Burr  on  September  thirteenth,  lie  found 
him  as  gay  as  usual,  and  as  busy  in  speculations  on 
reorganizing  his  projects  for  action  as  if  he  had  never 
suffered  the  least  interruption,  when,  Blannerhassett 
thought  all  of  his  energies  ought  to  have  been  devoted  to 
the  destruction  of  his  enemies.  In  fact,  Burr  visited  Eng- 
land with  the  view  of  reviving  his  schemes,  which  he 
always  insisted  were  lawful,  but,  not  meeting  with  success, 
he  returned  to  Xew  York  and  devoted  the  remainder  of 
his  long  life  to  his  profession. 

Although  acquitted,  the  country  refused  to  believe  him 
innocent,  but  regarded  him  as  a  traitor.  A  terrible  fall 
for  a  man  who  had  once  stood,  both  with  the  leaders  and 
with  the  masses  of  his  party,  second  only  to  Jefferson  him- 
self, and  between  whom  it  had  required  thirty  ballotings 
to  settle  the  struggle  for  the  Presidency:  of  which  strug- 
gle. Bayard  had  written  to  Hamilton  (March  8,  1S01),  that 
Burr  might  have  been  elected  President  "  by  deceiving 
one  man  (a  great  blockhead)  and  tempting  two  (not 
incorruptible)." 

Burr  always  claimed  that  his  projects  were  lawful,  and 
would  have  been  beneficial  to  the  country.  He  frequentlv 
referred  to  the  fact  that  he  had  to  rely  for  aid  upon  asso- 
ciates, who,  it  was  known,  would  countenance  no  treason, 
and  on  his  death-bed  he  said  he  would  as  soon  have 


32 

thought  of  seizing  the  moon  and  parceling  it  out  among 
his  followers,  as  of  separating  the  Western  States  from 
the  Union.  Stout  old  Admiral  Trnxton  testified  in  his 
favor,  and  General  Andrew  Jackson  said  lie  had  seen 
nothing  wrong-  in  the  project,  and  had  agreed  to  favor  it. 
It  is  said  that  while  Jackson  was  waiting  in  Richmond  to 
testify,  he  was  always  ready  to  mount  his  hotel  steps  and 
denounce  General  Wilkinson  and  Mr.  Jefferson  to  the 
crowds  that  assembled  to  hear  him.  However,  the  gen- 
eral verdict  of  the  country  has  always  been  against  Burr. 

The  first  tidings  Mr.  Wirt  received  of  the  apprehension 
of  Burr,  and  of  his  being  sent  to  Richmond,  was  in  a  letter 
from  his  wife,  lie  wrote  Iter:  "I  should  not  be  much 
surprised  if  he  is  discharged  on  a  petition  to  the  judge,  or 
let  to  bail,  and  make  his  escape  again.  If  the  man  is  really 
innocent,  these  persecutions  will  put  the  devil  in  his  head, 
unless  he  is  more  than  a  man  in  magnanimity."  *  *  * 
Mr.  Wirt  afterward  became  convinced  of  Burr's  guilt. 

Jefferson   certainly   believed   that    Burr   was  guilty. 

Burr's  enterprise,"  he  wrote  to  a  friend.  "  is  the  most 
extraordinary  since  the  davs  of  Don  Quixote.  It  is  so 
extravagant  that  those  who  know  his  understanding  would 
not  believe  it.  if  the  proofs  admitted  doubt.  He  has 
meant  to  place  himself  on  the  throne  of  Montezuma,  and 
extend  his  empire  to  the  Alleghanies,  seizing  on  New 
Orleans  as  the  instrument  of  compulsion  for  our  Western 
States." 

Judge  Marshall's  opinion  gave  great  offense  to 
Mr.  Jefferson  and  his  friends,  and  it  was  at  the  time 
severely  criticised.  At  length,  however,  it  became 
acknowledged  as  right,  and  is  now  universally  approved; 
and.  as  has  been  well  said.  "  it  has  had  the  effect  of  pre- 
venting in  this  country  the  disgraceful  prosecutions  for 
treason  which  so  blot  the  pages  of  English  history." 


